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Nationality law in the United Kingdom

This paper gives answers to two questions:

1. Nationality law in the United Kingdom has undergone a radical transformation since the British Nationality Act 1948. Critically evaluate the impact of recent legislative amendments on those seeking UK citizenship.

The British Nationality Act of 1948 was set in place as a response to the need to give separate citizenships to individuals of Commonwealth countries, and gave a new status (Citizen of the United Kingdom and Colonies, CUKC) to those British individuals who were based in Commonwealth countries, but who had a close relationship with the UK. The 1948 Act was updated in 1970, with the introduction of the Immigration Act, which was put in place as a response to the perceived threat from large-scale immigration from its former Commonwealth dependencies, as access to the UK was restricted to those individuals holding CUKC nationality who had family members based in the UK. This was updated in 1981, with the British Nationality Act of that year, which abolished the CUKC status, instead replacing this with British citizenship, British Dependent Territories Citizenship (BDTC) and CUKC British citizens with close relations in the UK. This Act also introduced the category ‘British Protected Persons’ i.e., those people with a previous relationship to a former British dependency.

These legislations were followed up by amendments to the Act from 1993 onwards, with the most recent (2006) amendment leading to the Immigration, Asylum and Nationality Act (2006) which has made changes to the Appeals process and introduced civil penalties to employers who employ anyone subject to Immigration Control. The Act also gives powers to immigration officers to take biometric data at points of entry to the UK and to retrieve advance information on those people entering the UK. Most controversially, the Act allows the Home Secretary to deprive an individual of British citizenship if they consider that this deprivation would be “conducive to public good”.

Obviously, these most recent changes to immigration law in the UK present the most restrictive set of laws in terms of applying for British citizenship. The power invested in Section 40(2) of this Act in terms of deprivation of citizenship is, legally, more restrictive than the Nazi’s Nuremberg Laws of 1935, for example, and would apply, legally, even to British born citizens, not just people applying for British citizenship, although it could not be applied if such a decision would leave a person stateless.

In terms of practical problems with this new version of the Act, for anyone who is seeking British citizenship, the Appeals process is different, in terms of, specifically, now not allowing students who have not been entry cleared a right of Appeal, but, interestingly, now giving people who are living in the UK who had previously been classed as refugees the right of Appeal. All people now applying for British citizenship have to prove they are of good character, and are also subject to Citizenship Testing, and if they are successful in their application for citizenship, they must go through a Citizenship Ceremony.

Thus, the immigration laws have changed radically in the UK since the first law was put in place in 1948. Nowadays, with media furors about asylum seekers and the UK Government being worried about the sheltering of terrorists, the immigration laws have become much more strict, especially, as we have seen, in terms of Section 40(2) which gives the Home Secretary the right to deprive citizenship on the supposed harmfulness of an individual to British society or British individuals. These changes have thus been declared draconian, and wholly arbritary, by many, whereas others see these changes as entirely necessary, in view of the changing international political scene. Whatever one’s view on this, however, it is obvious that a person who is genuinely entitled to British citizenship will be granted this citizenship, and will be given an automatic right of Appeal if they think they have been unfairly denied this citizenship.

2. P arrives in the UK from Dubai stating that she is only fifteen year old and is seeking asylum in the United Kingdom as she faces threats of violence from her family members in Jordan for her refusal to marry a person of their choice. What are the international, regional and domestic human rights standards relevant in preparing your appeal before the Immigration Appeals Tribunal with regard to P's asylum claim.

An asylum seeker that arrives on the shores of the UK, claiming asylum from a threat in their country of origin is protected by asylum law, which is part of international humanitarian law and not part of immigration law. As such, this individual would be protected by the 1951 Convention relating to the Status of Refugees, and its 1967 Protocol. This Convention defines a refugee as “any person who…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his (or her) nationality and is unable or, owing to such fear, is unwilling to avail himself (of herself) of the protection of that country”. Thus, this particular individual would be protected under the standards of this Convention, and would be considered an unaccompanied minor refugee, fleeing from Jordan for fear of persecution.

Under the terms of this Convention, therefore, the UK would have an obligation to treat this individual as a refugee until the asylum application is processed i.e., the UK would not be legally able to return the individual to their country of origin, and the UK must, legally, provide the basis for an asylum application to the individual. The UK has recently put its Nationality, Immigration and Asylum Act (2002) in place to deal with such individuals. In terms of applying for asylum, this individual would reach the UK shores and would make an application for asylum upon entry, as an unaccompanied minor, with screening occurring upon arrival at the shore. Temporary admission to the UK will usually be granted, and the individual would be required to stay at a particular address whilst the asylum application is being processed. The decision-making process, whether to grant asylum or not, would be made by Home Office officials, based on an interview with the applicant and the information given in the applicant’s statement of evidence form, a special version of which has been produced for unaccompanied minors.

If the asylum application was refused, the individual would receive a letter setting out its reasons for refusal, and then the individual would have the right of Appeal at the Asylum and Immigration Tribunal. This Tribunal has been criticized by many, as it does not have an unbiased system, having no judge, no record of proceedings, and not allowing the defendant to see court records, but it is currently all that is available in the UK for those asylum-seekers that have been refused leave to remain in the UK. The Tribunal is governed by the Asylum and Immigration (Treatment of Claimants etc) Act 2004, and essentially acts to look for material errors in the law, in terms of deciding if the applicable laws were indeed applied correctly in the original assessment of the asylum claim.

Thus, this unaccompanied minor asylum seeker would be subject to international laws designed to protect refugees, and once in the UK, would be subject to the asylum policies of the UK government, which, as we have seen, allow the individual to present their history, and, if asylum is refused, allow the individual to Appeal against this decision.